Employers may not discriminate against or refuse to hire an individual because such person is subject to state or U.S. military duty. Employers also may not request in any way that an employee waive his or her rights to reemployment, benefits or any other rights protected by law.
New York law also prohibits employers from discriminating against, intentionally depriving from employment, or preventing or interfering with the employment of, any individual because the person is a member of the state’s organized militia. Employers also may not discourage an employee from enlisting in the organized militia by threatening the person’s employment.
For more information, please see New York Military Law §251, §252, and §318.
Reinstatement of Employment
An employee who takes leave from employment for active military service or training is generally entitled to be restored to the employee’s former position or a position of similar seniority, status, and pay. To be eligible, an employee must:
- Have held a position with the employer that was not temporary;
- Receive a certificate of completion of military service;
- Still be qualified to perform the duties of the position; and
- Apply for reemployment within
- 90 days after release from active military service
- 10 days after release from temporary service to participate in drills and certain other training (such as reserve duty training, instruction or duties, annual full-time training duty, active duty for training or other annual training)
- 60 days after release from initial full-time training duty or initial active duty for training with or in the state or U.S. armed forces.
Employers must extend the same reemployment rights to employees who are discharged or suspended by the employer because of membership in the state organized militia or the U.S. reserves. To be eligible, the employee must be qualified to perform the duties of the position and apply for reemployment within 10 days after the discharge or suspension. However, employees who participate in routine reserve officer corps training are not entitled to reemployment, except when performing advanced training duty as a member of a reserve component of the armed forces.
Employers may not discharge an employee who has been reinstated to employment without cause within one year after being restored to the position.
For more information, please see New York Military Law §317.
Maintenance of Benefits
Employers must consider employees who are reinstated as having been on furlough or leave of absence during the period of military service, temporary service, or discharge or suspension, and must allow such employees to participate in insurance or other benefits offered by the employer in accordance with the employer’s established rules and practices relating to employees on furlough or leave. New York Military Law §317-4.
Members of a reserve component of the U.S. armed forces, including the National Guard, who are called to active duty are generally entitled to continue health insurance coverage under the employer’s group policy. The employee must make the request for continuation in writing and must pay the required premiums on a timely basis. This continuation coverage is not available for employees who are or could be covered as an employee or dependent by another arrangement that provides coverage or by Medicare. For more information, please see New York Insurance Law §3221(n) and §4305(g).
Spousal Military Leave
Employers with 20 or more employees must allow an employee who works an average of 20 or more hours per week and who is the spouse of a member of the U.S. armed forces, the national guard, or the reserves, to take up to 10 days of unpaid leave from work while the employee’s spouse is on leave from deployment during a period of military conflict to a combat theater or combat zone of operations.
The right to take spousal military leave does not affect an employee’s rights with respect to any other employee benefits provided for in other laws. Independent contractors are not entitled to spousal military leave.
For more information, please see New York Labor Law §202-i.
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